Federal Revenge Porn Bill Will Look To Criminalize Websites

from the dangerous-step dept

My own representative in Congress, Jackie Speier, has apparently decided to introduce a federal "revenge porn" bill, which is being drafted, in part, by Prof. Mary Anne Franks, who has flat out admitted that her goal is to undermine Section 230 protections for websites (protecting them from liability of actions by third parties) to make them liable for others' actions. Now, I've never written about Franks before, but the last time I linked to a story about her in a different post, she went ballistic on Twitter, attacking me in all sorts of misleading ways. So, let me just be very clear about this. Here's what she has said:

"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."

That makes it clear her intent is to undermine Section 230 and make third parties -- like "Google, any website, Verizon... face liability."

Now, her retort to all of this is likely that she's not seeking to undermine Section 230 in any way. Rather, she's attempting to do something of an end-run around it. Section 230 has never protected sites from liability of federal crimes -- just civil infractions and state crimes. So her goal is to make the amorphous concept of "revenge porn" a "federal crime" thereby suddenly making third-party websites liable. She will argue that does nothing to undermine Section 230. A more reasoned and thoughtful look at the issue, however, shows how this effort is fraught with dangerous consequences and potential First Amendment problems.

Taking a step back, though, let's be clear: revenge porn -- the practice of posting naked pictures of someone (who likely took those photos for an individual or themselves, rather than the public) along with that person's identifying information -- is odious. Those who are involved in the practice are morally repugnant individuals. And yet, what we've seen is that there do appear to be ways to deal with them. One of the most well-known creators of revenge porn, Hunter Moore, was recently arrested on charges that he conspired with another person to hack into email accounts to get more photos. Often, those engaged in revenge porn are also engaged in extortion over those images or other crimes on which they can be charged. Some revenge porn sites have been hit with lawsuits for copyright infringement -- though that creates a whole different set of problems.

Still, you can see why there's a temptation to create a new anti-revenge porn statute. The whole concept of revenge porn is itself repugnant, so it's tempting (especially as a lawmaker) to pull out that old hammer and create some regulations. But the dangers of regulating based on reacting to the odiousness of those sites may obscure the way such laws will inevitably -- as Prof. Franks herself admits -- impact companies that are clearly not engaged in revenge porn.

In the article about the legislation, EFF's Matt Zimmerman (who, actually, just left EFF) points out that using criminal law here is "dangerous" because it would likely lead lots of companies to reflexively delete all sorts of content, including plenty of perfectly legal and legitimate content, to avoid the sort of liability Franks describes. And that's the huge problem here. By spreading liability, you guarantee over-censorship. It's easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what "revenge porn" is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA's Section 230.

People who don't think through the details seem to assume that it must be easy to define what is "revenge porn," but the deeper you go, the more difficult it becomes to define -- and the more risks there are of both over-criminalizing and creating serious First Amendment issues. For example, you could say that sites should be forced to take down photos of individuals where those individuals insist that the photos are problematic. But then you'd have to deal with situations, like with Ranaan Katz, where he went after a blogger and Google (using civil copyright law) for posting an "unflattering" photo. Do we really want to bring criminal law into that arena?

And the First Amendment issue is not easy to get around. At all. As lawyer Mark Bennett discussed in trying to create a First Amendment-compliant anti-revenge-porn statute, it's not an easy challenge:

The First Amendment problem we face is that “posting nude or explicit images of former lovers online” is speech; a statute focused on such posting is a content-based regulation of speech; content-based regulations of speech are presumed to be invalid (that is, speech is presumed to be protected); and the Supreme Court in U.S. v. Stevens expressly rejected a balancing test for content-based criminal laws, instead applying a categorical test.

At best, Bennett tries, as an exercise, to see if it would be possible to extend obscenity laws to cover "revenge porn," but that would massively expand obscenity laws, again in potentially dangerous ways. The problem here is that pretty much everyone agrees that revenge porn is a really horrible thing -- but any attempt to criminalize it will have serious implications way beyond the targeted issue.

Instead of following Franks down that dangerous road, it would be wise to focus on ways to use existing laws to go after those who are clearly engaged in related questionable behaviors. Changing the laws to put the burden on third parties is only going to create significant new problems. I'm disappointed that my own Representative in Congress, Jackie Speier, appears to not realize this, and I will be contacting her office to express my concerns about the bill.

I have a better idea. How about punishing the person that published such pictures for a myriad of existing crimes? I don't know, if I take a picture that is clearly private and the party involved did not allow any sort of distribution, make copies of it and paste them on the streets I'm sure nobody will try to bring new legislation to punish it as the EXISTING LAWS ALREADY DEAL WITH IT.

But you know, we added the "on the internet" arcane suffix in the mix. Suddenly new laws are needed for old problems.

It might be better to criminalize, not the hosting of such material, but the solicitation of such material. Revenge-porn websites tend to make it clear they want you to post images and videos without the permission of the people in them. So, criminalize solicitation of posting of material without the permission of the people shown in it, and the demanding of payment to take such material down when the request to take it down comes from a person shown. That'd leave the honest web sites free and clear, while scotching the business model of the revenge-porn sites.

Existing Laws

Ninja, you're right. Sadly, though, there seems to be a pervasive belief that good legislators legislate more, as opposed to only creating new laws or improving old ones. This is a lot like the problem with R&D in industry. We aren't just about bringing new ideas to production; we also add value by vetting bad ideas and keeping them out.

Good legislators will protect us from new laws like this one. Are there any in our government?

This will be the thin edge of the wedge if passed. If revenge porn can be blocked by making third parties liable, then so can extremist and hate speech, and then anything defamatory, and then illegal content.

How do you identify revenge porn?

An entity like Google has no way to know whether a given video or image constitutes revenge porn or just regular, amateur porn. Furthermore, even if Google is notified that a particular video or image constitutes revenge porn, it has no way to know whether the claim is truthful or the person just wants the image to go away for whatever reason.

There's just no way to tell "revenge porn" apart from "regular porn" without knowing when and how the content was released. Holding providers responsible would only encourage them to delete all pornographic images, either immediately or upon request, in order to avoid liability for something that isn't their fault and they couldn't possibly identify without either being psychic or taking all complaints at face value.

Re:

It might be better to criminalize, not the hosting of such material, but the solicitation of such material.

Still a potential can of worms. How about the celebrity gossip site that solicits photos of celebrities, and some of those show celebrities in a less than flattering light. How do you distinguish that situation?

Why do I have a sense of Deja-vu here. This bring's back memories of the late 80's when they wan't ban porn and criminalize those that made it.

And once again if we yield under pressure from a segment of society, which claims moral superiority over others will have added repercussions in the future. It also infringes on personal privacy and one's own choices and can only be described as a form of censorship.

Security issues make this a non-starter

Before I begin: I agree with Mike and probably with most people that revenge porn site operators are assholes. So with that out of the way:

We're operating in an environment rife with security issues. We live in a time of daily mass data breaches, hundreds of millions of bots, fiendishly clever malware, software loaded with accidental security holes, and software loaded with deliberate security holes (thanks NSA).

Because of all this (and more that I won't bother to enumerate) there is no way to know who is actually responsible for the appearance of revenge porn (or any other content for that matter) online. Consider these scenarios:

1. A and B are dating. A shares naughty photos with B. A and B break up. A posts the photos and blames B.

2. A and B are dating. B has access to A's computer. B posts A's naughty photos from A's computer just before breaking up.

3. A and B are dating. A shares naughty photos with B. A and B break up. A dates and shares naughty photos with C. C gets hacked, naughty photos show up online, C blames B.

4. A and B are dating. A shares naughty photos with B via one of the many insecure file hosting sites. The site gets hacked. A blames B.

5. A and B are dating. A shares naughty photos with B. B sells her computer without wiping the disk drives. A blames B.

6. A and B are dating. A shares naughty photos with B, who has them on a laptop going through customs where it is confiscated and imaged. One of the techs working for customs sells the photos. A blames B.

There are many variations on this theme. But what they all have in common is that they make it essentially impossible to assign attribution for the action to the person who actually did it. There are two reasons for this: one being the myriad security issues, the other being that a digital copy is a copy is an original.

If this ill-conceived law (or any of the other similarly misguided ones that have been proposed) are enacted, two things will happen: first, people who are completely innocent will be convicted by prosecutors eager to demonstrate their tech savvy and grandstand a bit before election time. (See "Julie Amero" for a case study.) Second, people who are completely guilty but technologically adept will escape unscathed.

Revenge porn is awful. But this is not the way. It simply Will Not Work.

Re:

Uh, I think it was a bit further back. This sounds more like the start of another McCarthy era. Forget the porn angle, it is the third party liability that is on the line. Then they can start their inquisitions.

All the good laws have been passed

The problem facing a lot of lawmakers is that all the good laws have been passed already.

Make it a crime to steal photos? Already done- it's called theft.Make it a crime to hack into a computer? Already done.Make it a crime to ask for money to delete photos? Already done- it's called extortion.

So what's a lawmaker to do when her constituents tell her to do "something"? Why, make new laws that are overly broad and will have chilling effects down the road. But remember, she did "something".

Re: I got this one dealt with already folks, So don't worry!

You may be on to something here. The NSA has actual dirt on our elected officials. If someone were to create, let's call it fictional dirt, on those same officials, we might actually have an even hand. To further consternate the entrenched classes, use GIMP instead of Photoshop (it has less chance of leaving a hidden trail of identifying information) then use TOR over a VPN to put it on a Torrent site. Quality really isn't an issue here. Creativity is.

Re: Re:

That'd take a slight variation in language. Make it clear that it's not the posting without permission, but the posting without permission of material that the subjects had a legally recognized expectation would not be made public. So, a photograph taken in a public place where photographs were being taken? The subject has no expectation that photographs wouldn't be made public. Photographs taken in your bedroom when they weren't being taken for public distribution, or where they were taken without your knowledge? That's when the site needs to be careful.

And most celebrity-gossip sites would still be in the clear. They might be asking for embarrassing/unflattering material, but they wouldn't be asking specifically for material the subjects expected wouldn't be public. Much of it would be shots taken in public areas where there's no specific ban on photography or snapping videos with cel phones. And the site wouldn't be demanding payment as a condition of taking anything down. They might argue that the celebrities had no expectation of privacy when the photos were taken and so no right to demand the photos not be published, but the gossip sites aren't typically trying to extort payment to not show the photos.

Re: Re: How do you identify revenge porn?

We might take a relatively loose definition of porn here. If you are posting something and then asking for payment to remove it, then that 'it' is pornographic, at least to the target of the extortion. Pornographic or not, it is still extortion, and interstate most likely at that.

They would really be better off getting the FBI back on white collar and interstate crime rather than terrorism, then to shovel out this kind of dreck legislation.

Ok then why don't we have a law that criminalizes the abuse of other laws. Oh right, that won't work because it's prosecutors that that abuse the statutes to charge people with crimes that were never intended to be covered by those laws and even if there it was a crime to abuse the law in that manner only prosecutors can bring a criminal case and they aren't going to charge themselves with any crimes even if they commit them so it would basically be useless. Still it would be nice if there were some form of recourse that a citizen could pursue to combat this sort of abuse. (I'm thinking of something similar to anti-SLAPP legislation only applied to misuse of criminal statutes by over-zealous prosecutors)

Re: Re: Re:

Publication without consent still violates publicity rights regardless of where the images are taken. The only reason celebrity gossip publications get away with it is they are able to abuse an exception in the law intended for a different purpose and that is known as the news loophole. This exception is in place to allow those reporting newsworthy events to cover those events for the public good without having to worry about liability for violating publicity rights. Think about what it would be like if some natural disaster occurred and the news crews had to worry about getting releases from everyone they filmed on the street just to report the information to the public to avoid getting sued later by someone just looking to cash in on the fact that they didn't give their permission to have their image published. The gossip magazines and paparazzi photographers claim that simply because the person is a celebrity that is in the public eye that people are interested in knowing about, it makes these images "news" that qualifies them to being exempt from this requirement.

Re: Re: Re:

That'd take a slight variation in language. Make it clear that it's not the posting without permission, but the posting without permission of material that the subjects had a legally recognized expectation would not be made public. So, a photograph taken in a public place where photographs were being taken? The subject has no expectation that photographs wouldn't be made public. Photographs taken in your bedroom when they weren't being taken for public distribution, or where they were taken without your knowledge? That's when the site needs to be careful.

So... Gawker and the Toronto Star would be in *criminal* trouble for posting photos of Toronto Mayor Rob Ford smoking crack in a private home?

Or... what about Chad Hurley taking a short video at Kim Kardashian and Kanye West's wedding and posting it online. That was a private event.

Re: Re: Re: Re: Re:

It's the act of publication which is committed by the person who posts it not the host in the case of a user generated content site. The host is protected by Section 230. If it's published on a site in a traditional media fashion where the site gets the content and then decides to publish it themselves on their own site then yes they would be liable. Mind you publicity rights are a matter of state law not federal law and are also civil law matters not criminal ones.

Mary Anne Franks is a poor legislative drafter

Along with others I debated Mary Anne Franks in a comment thread at the Concurring Opinions blog last year, over her absurd draft law to criminalize what she calls "revenge porn" and also the "dissemination" of National Geographic magazines, Victoria's Secret catalogs, and other images of scantily-clad people. It was a toss-up which was less admirable: her legislative-drafting skills, or her narcissistic hostility toward comments on her draft law which she had explicitly invited but then angrily rejected when they were academic and critical rather than fawning.

Although it likely won't matter to Jackie Speier, for the dignity of Congress if no other reason I hope that someone more competent than Franks is drafting any "revenge porn" law Speier intends to propose.

Neither Franks' remarks (at her blog) nor Speier's (as reported) give me any hope that either of them has figured out how to finesse the "time of consent" problem. If a model consents to a photo and cannot later rescind or revoke that consent, then a new law against posting un-consented-to photos won't do much.* If a new law says a model can revoke "consent" to a photo long after it has been made and distributed-- thereby criminalizing further possession and "dissemination"-- then prosecutions would obviously violate due process because of the private "spooky action at a distance" which would make a given photo contraband without even legislative, much less actual, notice to persons who obtained the photo when it was "consented-to" and could never know (before they were indicted) that consent to that photo had been rescinded by the model at some later time.

*A new law might criminalize taking immodest photos without the model's consent, but State peeping-tom laws already cover that sort of thing so a Federal law would be nearly pointless. Though pointless, such a new Federal law would not be harmless, because prosecutors would use it to subject people to indictments and trials regardless of justice or reason.

Re: Re: All the good laws have been passed

The photographer owns the copyright, and needs permission of the subject to take said photo if it is in a private setting.

Looks like if you REALLY want your significant other to have that naughty photo, you should take it yourself so you retain distribution rights. If you let THEM take it, it's up to the other person to decide who gets to see it and who no longer gets to see it.

Re: Re: Re: Re:

In trouble, possibly. Not subject to criminal charges under what I suggested, though. They aren't soliciting material the posters don't have permission from the subjects to post, nor are they demanding payment to take the posts down. The people who posted the material may be subject to criminal charges, but not the site itself.

Re:

Use a part of the Miller test (for obscenity) with a "reasonable expectation of privacy" caveat in place of the current second and third prong of the test.

This then removes the full 'obscenity' ambiguity, allows Community standards of what the 'average' contemporary person thinks and allows the privacy aspect (which is the second issue these matters - with revenge/harrassment being the first) to be dealt with.

Plug in a bit of "knowingly allow" & maybe "intent to distribute" and you should have a workable statute that could meet the first amendment problems. Though a strict definition of what "community" means and some non ambiguous defenses based around "public figures, public interest etc, lack of intent, etc." would also make it more robust and able to have discretionary reasonableness applied.

Just an idea.. though I would say if this sort of thing came into affect it would need to have a sunset clause unless a review every 4-5 yrs (community standards change) is initiated.

Safe harbors must go

I think it would be a good thing to eliminate all the safe harbors. Then we could:

* Sue telephone companies for calls from advertisers who ignore the do-not-call lists* Sue chemical companies for the actions of contractors who dispose of waste improperly* Sue clothing providers for abuses of their suppliers overseas* Sue record companies for the raw lyrics of rappers* Sue power companies for food destroyed by prolonged power outages due to poorly maintained equipment* Sue toll agencies for accidents caused by other drivers on the tollways* Sue landlords for losses due to fires caused by other tenants* Sue banks for losses caused by mortgagors

I think this would be a "wonderful" boon to mankind; and I think someone should carefully explain this to the Honorable Representative Speier and to Professor Franks.

tl;dr : If you take nude pics, they WILL go on the Web

so stop getting ashamed of your body. If someone faps to nude pics of you, it's a compliment. And that's what nude pics ARE FOR. Thats the reason they're made : arousing people.

As for stalkers, if they're so disconnected that they come to people in meatspace, then photograph them and post their pics with SEX OFFENDER written on them. On their facebooks. Do that enough times and they will learn to stay home and fap instead of bothering others.

Re: I got this one dealt with already folks, So don't worry!

Who is the real jerk?

I'm not entirely sure what revenge porn is, and maybe the people who post it are assholes. But they're little assholes. You want to know who the big assholes are?

The big assholes are legislators who knowingly make laws absolutely intended to chill speech, who try to impose liability on innocent people who have only the most tenuous connection to illegal behavior, who try to use student council level procedural shenanigans to impose their wretched will everybody everywhere.

So yes, I'm saying that Rep. Mary Ann Franks is a big asshole. And I feel vengeful while I say it. Is that revenge porn? I'll bet she thinks it is. So this website, it's host, it's internet provider and my internet provider are all liable for something that I absolutely intend to be political speech with absolutely no intent of any harm except to make the Representative feel ashamed of her motives.

I'm a free-born American citizen and I feel nervous saying something that it is my birthright to say. That is, as far away as I am, I feel the chilling effect.

Re: Re: Re:

Or we could just tell victims of revenge porn that they have a perfectly good civil remedy against revenge pornographers for invasion of privacy (intrusion, appropriation, public disclosure), and invite the grandstanding politicians to STFU.

Are people really this stupid?

The digital made it possible for anybody to take thousands of pix and do whatever they can with them. People who allow digital pix of themselves as they enjoy absolutely intimate and explicit sexual pleasure already know what can be done with their intimate information. If you don't want it published, don't allow the image to be captured. It's that simple. Just like the old pre-digital rool of tum: "Never write down anything that you are not willing for the whole world to see." Leftists are always looking to make somebody else pay for the emotional damage that their perverted world view causes. No thanks. Any lawmaker who buys into this scam is part of the problem not the solution.

Re: Are people really this stupid?

Leftists are always looking to make somebody else pay for the emotional damage that their perverted world view causes.

Yet it's arguably lingering conservative values that make it so emotionally damaging. While revenge porn is never morally OK, why does society have to double down on the damage by judging the photos as shameful for being sexual in nature?

I think the problem is that this bill treats google.com and 4chan / encyclopediadramatica.es as the same site.

The latter is all about revenge, and stopping at just porn doesn't mean that sometime later the politicians will want to shut down "free speech" sites for the enabling of revenge porn that persists there.

A lot of "porn" things on the internet are already stolen and already fall under a DMCA takedown, just people are too damn embarassed to fill out a DMCA form because that is an admission of guilt that gets attached to their name. Revenge porn sites also post badly formed DMCA notices and legal threats so google can find them, thus making the person trying to take down the image the target of further mockery.

Re: Re: Re: How do you identify revenge porn?

We might take a relatively loose definition of porn here. If you are posting something and then asking for payment to remove it, then that 'it' is pornographic, at least to the target of the extortion.

Re: Re: Re:

Then confine it to extortion... wait a minute, we already have laws against extortion. The "expectation of privacy" thing comes up when telephoto lenses are used to capture images of celebrities on private land in an enclosed area/walled garden, e.g. those topless photos of Kate Middleton that were published everywhere.

She had an expectation of privacy, didn't she?

That was WAY out of line, but every paper that got hold of them published them.

Laws to prevent cyberstalking/Extortion and Revenge Porn

Sorry folks, you miss the point. Why do you want to make innocent folks suffer humiliation by all of this? It is not secret that the web operators like Webazilla etc. use these photos for their own game. It is silly to think that they are not involved in promoting these things because they make profits by the clicks on these sick websites. The more the domain owner makes, they get a big cut. I believe you think hosting/registrar companies have no interest in it. The rule should be like the victims of ID theft. File a police report and notify the content operator to take it down. If the content operator finds out that the person is really not a victim, they can put it back on. Doubt any PD around the US is going to take a police report on cyberstalking/revenge porn without basically giving the victims, whether male or female the third degree. That should be the law. So think about it folks. Some of this stuff comes from foreign sources who want to destabilize our country and that should make you wake up!! That's all I can tell you for now.l